Luke G. Liacos v. Easton, Town of - Town Clerk (SPR 20250173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2025 SPR25/0173 Connor Read Town Administrator Town of Easton 136 Elm Street Easton, MA 02356 Dear Mr. Read: I have received the petition of Luke G. Liacos, Esq., of Krakow, Souris & Landry, LLC, on behalf of Paul Vilela, of the North Atlantic States Regional Council of Carpenters, appealing the response of the Town of Easton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 6, 2025, Mr. Vilela requested the following records related to “New Public Safety & DPW Project”: [1] A Copy of the Complete CM/GC SOQs for the above referenced project qualified or not. [2] A Copy of the SOQ Evaluation score cards for the CM/GC SOQs for the above referenced project. [3] A list of the Building Committee members and their Contact Information for the above referenced project. The Town provided a response on January 21, 2025. Unsatisfied with the response, Attorney Liacos petitioned this office and this appeal, SPR25/0173, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Connor Read SPR25/0173 Page 2 January 23, 2025 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s January 21st Response In its January 21, 2025 response, the Town provided Mr. Vilela with records responsive to Items 1 and 3 of his request. The Town withheld records responsive to Item 2 pursuant to Exemption (h) of the Public Records Law. Current Appeal In his January 21, 2025 petition to this office, Attorney Liacos argued that permitting the Town to withhold responsive records under Exemption (h) would “completely negate the purpose of the Massachusetts public bidding laws and the avenues through which an aggrieved interested party may initiate a bid protest with the Office of the Attorney General.” Specifically, Attorney Liacos cited G.L. c. 149, Section 44D1/2(g), which provides that “[u]pon completion of the evaluations, the contents of the statements of qualifications shall be open to the public.” Exemption (h) Exemption (h) permits the withholding of: proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person. G. L. c. 4, § 7(26)(h). Exemption (h) serves to protect the integrity of the bidding procedure by keeping all bidders and potential bidders on equal footing. See Datatrol Inc. v. State Purchasing Agent, 379 Mass. 679, 691 (1980) (the purposes of competitive bidding go beyond economy and efficient administration to the prevention of favoritism in the awarding of government contracts). Competitive bidding ensures full publicity as to the contract and encourages the guarding of the public welfare. Id. at 699. Although the competitive bidding process does not have the

Connor Read SPR25/0173 Page 3 January 23, 2025 advantages of more flexible purchasing policies, the Legislature has mandated the process to foster honesty and accountability in government. Id. at 701. In its January 21, 2025 response, the Town stated: The document request is being withheld pursuant to exemption (h) to protect the bidding process. G. L. c. 4, § 7(26)(h) applies to inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person. Specifically, it allows government officials to withhold any interagency or intra-agency communications regarding the evaluations of the bids or proposals until the records custodian renders a decision to enter into negotiations with the successful bidder or awards the contract. Once the decision to enter into negotiations with a particular bidder has been made by the Town, or the Town awards the contract, the Town will be able to provide the document requested. Where the records responsive to Item 2 constitute communications made in connection with an evaluation process for reviewing bids or proposals, and the Town has not yet entered into negotiations with or awarded a contract to a particular person, I find the Town has met its burden to withhold the responsive records. Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney Liacos is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Luke G. Liacos, Esq. Walter Hartley